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Constitutional Rights to Supervised Drug Injection Facilities in Canada Peter Bowal*, Kelsey Horvat

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Constitutional Rights to Supervised Drug Injection Facilities in Canada Peter Bowal*, Kelsey Horvat OPEN ACCESS Review Constitutional rights to supervised drug injection facilities in Canada Peter Bowal*, Kelsey Horvat Haskayne School of Business, University ABSTRACT of Calgary, 2500 University Drive, NW, On September 30, 2011, the Supreme Court of Canada ordered the government of Canada to continue Calgary, AB, Canada, T2N 1N4 * Email: [email protected] to exempt Vancouver’s supervised narcotic injection facility from Canada’s criminal drug laws. The controversial clinic, known as Insite, had operated for eight years in one of the country’s most socially troubled and economically challenged neighbourhoods struggling with addictions to illegal drugs. Insite was the first of its kind in North America, although supervised drug injection facilities continue in Europe and Australia. In this article we describe what the court accepted as the factual outcomes of this clinic and the constitutional basis for this judicial rejection of government health and criminal policy. We also consider the implications of this decision for similar facilities across Canada. http://dx.doi.org/ 10.5339/irl.2013.3 Submitted: 30 August 2012 Accepted: 18 November 2012 ª 2013 Bowal & Horvat, licensee Bloomsbury Qatar Foundation Journals. This is an open access article distributed under the terms of the Creative Commons Attribution License CC BY 3.0 which permits unrestricted use, distribution and reproduction in any medium, provided the original work is properly cited. Cite this article as: Bowal P, Horvat K. Constitutional rights to supervised drug injection facilities in Canada, International Review of Law 2013:3 http://dx.doi.org/10.5339/irl.2013.3 Page 2 of 7 Bowal & Horvat. International Review of Law 2013:3 THERAPEUTIC BACKGROUND The Insite clinic opened in 2003 in Vancouver’s Downtown Eastside, a neighbourhood fraught with disproportionately high levels of illegal injection drug use, poverty, homelessness, and high rates of HIV and hepatitis C infection.1 Insite sought to prevent death by accidental overdose, to reduce blood-borne illness and other infections, and to provide access to counseling, detoxification, and other health services that otherwise might not be accessible by the area’s high need population.2 Several studies purport to highlight Insite’s salutary impact. For example, the facility was accessed by individuals at highest risk of disease and overdose.3 It treated injection-related infections,4 and contributed to the 35 percent reduction in death by overdose in the area surrounding the clinic, whereas overdose deaths declined by only 9 percent in Vancouver farther afield from the clinic.5 Most of these ‘use and benefit’ studies were conducted by The University of British Columbia (UBC) researchers relying upon Insite’s own records. Voluntary blood sample and questionnaire data on these subjects, the Scientific Evaluation of Supervised Injecting (SEOSI) cohort, was compared with data from other Vancouver area cohorts, specifically, the Community Health and Safety Evaluation (CHASE) cohort and the Vancouver Injection Drug Users Study (VIDUS) cohort.6 The comparative data were compiled to establish Insite’s value in support of a renewal by the Federal Minister of Health7 of its legal exemption under section 56 of the Controlled Drugs and Substances Act (CDSA): The Minister [of Health] may, on such terms and conditions as the Minister deems necessary, exempt any person or class of persons or any controlled substance or precursor or any class thereof from the application of all or any of the provisions of this Act or the regulations if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest.8 As a matter of first observation, it is unlikely that the 1996 provision of this ministerial exemption anticipated the Insite-type supervised injection facility (SIF) and the Canadian Charter of Rights application to force the Minister’s hand. The medical and scientific purposes envisioned as exemptions at that time would have been along the lines of medicinal marijuana. However, the phrase “or otherwise in the public interest” clearly left the door open for broader and longer-term considerations, as well as Charter support of them. Insite is strictly self-regulated. Clients are encouraged to register in the same name at each visit, although it does not need to be their real name.9 Names are retained in the database to track usage and collect data. Clients receive an injection kit containing the sterile tools needed to inject and are taken to one of twelve injection booths. Under the supervision and assistance of the clinic’s nurses who monitor for signs of overdose, clients inject themselves with illicitly-acquired drugs such as cocaine and heroin. Nurses do not assist with the injections. After injections, clients are led to a “chill-out” room to relax and receive counseling. Nurses also examine and treat wounds, administer immunizations, test clients for HIV and other sexually transmitted diseases, and offer referrals to other health services. Upstairs in the clinic is Onsite, a detoxification facility for clients who wish to pursue that option.10 The harm-reduction strategy seeks to “decrease the adverse health, social, and economic consequences of drug use without 1Can. v. PHS Community Servs. Soc’y, 2011 SCC 44. The facts of this case are taken from the Supreme Court of Canada decision generally. 2Vancouver Coastal Health, Supervised Injection Site, Services, http://supervisedinjection.vch.ca/services/ (last accessed Mar. 10, 2013). 3Evan Wood et al., Do Supervised Injecting Facilities Attract Higher-Risk Injection Drug Users? 29 Am. J. Preventive Med. 126 (2005). 4Will Small et al., Accessing Care for Injection-Related Infections Through a Medically Supervised Injecting Facility: A Qualitative Study, 98 Drug & Alcohol Dependence 159 (2008). 5Brandon D. L. Marshall et al., Reduction in Overdose Mortality After the Opening of North America’s First Medically Supervised Safer Injecting Facility: A Retrospective Population Based Study, 377 The Lancet 1429 (2009). 6Even Wood et al., Methodology for Evaluating Insite: Canada’s First Medically Supervised Safer Injection Facility for Injection Drug Users, 1 Harm Reduction J. 9 (2004). 7Thomas Kerr et al., Drug-Related Overdoses Within a Medically Supervised Safer Injection Facility, 17 Int’l J. Drug Policy 436 (2006). 8Controlled Drugs and Substances Act, SC 1996, c 19. 9Mark W. Tyndall et al., Attendance, Drug Use Patterns, and Referrals Made from North America’s First Supervised Injection Facility, 83 Drug & Alcohol Dependence 193 (2006). 10B. Lightfoot et al., Gaining Insite: Harm Reduction in Nursing Practice, 105 The Canadian Nurse 16 (2009). Page 3 of 7 Bowal & Horvat. International Review of Law 2013:3 requiring abstinence from drug use.”11 According to Insite statistics, the clinic was visited around 900 times per day in 2010 and staff treated 221 overdoses with no fatalities reported. Some 458 clients were admitted to Onsite with 43 percent of those clients completing their detox.12 Insite is supported by the Vancouver police, the city and provincial governments. In spite of the positive findings and community support, Insite has many detractors, including those who question the objective strength of the academic studies – the very foundation on which the court’s decision rests.13 Anti-drug organizations and individuals dispute both the ideology and efficacy of harm reduction practices.14 Six physicians from Australia, Canada and the U.S. reviewed the 2009 study in The Lancet that reported the 35 percent decrease in overdose deaths. Data from 2001, a year which saw an unusual spike in overdose deaths, had been included. They postulated the decline in deaths was at least partially attributable to increased police presence in the neighbourhood.15 This critical analysis of The Lancet study also threw doubt on the statistics. Far from any decline, it measured an increase in overdose deaths between 2002 and 2007 (Insite began in 2003), a trend supported by data from the British Columbia Coroner’s Office over the same period of time. Almost half of The Lancet drug fatalities were found not to be related to drug injections, which would tend to inflate Insite’s impact. The UBC team that conducted the studies in question replied to these allegations in the January 2012 issue of The Lancet. It explained that the increase in overdose deaths found in the conflicting article was due to the fact that it took into account all overdose deaths, not just accidental ones. Therefore, that number included deaths due to other causes such as suicide. The UBC team also clarified that the decrease it found was in the immediate area surrounding the clinic, while The Lancet article included an area of several hundred city blocks. The UBC team also claimed that the heavy police presence mentioned in The Lancet article had actually ended a few weeks after the opening of Insite and “would have probably resulted in a conservative bias by differentially reducing overdose mortality in the area of interest before the facility’s opening.”16 HARM REDUCTION – A GROWING TREND WORLDWIDE In June 2012, the Global Commission on Drug Policy (GCDP), a group made up mainly of former politicians and scientists which aims to “bring to the international level an informed, science-based discussion about humane and effective ways to reduce the harm caused by drugs to people and societies,”17 released its annual report. Entitled “The War on Drugs and HIV/AIDS: How the Criminalization of Drug Use Fuels the Global Pandemic,” the report denounces the efforts made by many countries to curb drug use by attempting to limit drug supply and incriminating non-violent drug users. For example, the threat of police intervention actually encourages unsafe injection procedures (including needle sharing), as addicts may hasten to inject in order to avoid detection.18 Incarceration of drug users has also contributed to a disproportionately high rate of HIV infection within many prison systems, due to inmates using unsafe sex and injecting practices.
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